Alan writes:

"In order to produce any commodity a person must consume resources... So contractual exchange of property is one of the essential institutions of criticism of any free society."

I'm going to assume that "institutions of criticism" is worldspeak for "mechanisms to promote creativity", so forgive me if I misinterpret what you mean, but I assume that you are saying people should be allows to sign binding contracts when exchanging property and expect them to be respected even if the burden they place on the other party could be considered totally unreasonable (e.g. not allowing them to make backups in case of damage). This is true, with the proviso that the contract must not require either party to behave in a way which is immoral, or impose ludicrous penalties for violation (such as death). This would seem to imply that someone who buys the software legitimately and then violates the terms of the contract by copying and distributing the software should be subject to penalties, but it does not imply that the author should be permitted to extrapolate huge imaginary "lost earnings" and charge them to the violator, nor does it imply that the violator should suffer prison. I would guess that the worst legitimate penalty you could justify placing on the violator would be confiscation of the software and any ill gotten gains from its resale, minus the price he originally paid for it.

Anyone receiving the software from this person would not have been party to the contract, so they would not be subject to any penalty. In fact, if they paid the contract violator for the software they should be probably offered a refund if they return all copies - though this should not be compulsory.

Alan continues:

"I don't recall signing any contract saying that I wouldn't beat the shit out of the next person I see on the street, or that I wouldn't go the nearest shop, put a brick through the window and start stealing stuff. I respect these rules despite not having signed a contract to do so because these rules are objectively right and no free society could exist in which people systematically refused to respect them."

As he himself points out this is a case where contract law doesn't apply. Some things we don't do because a contract says we shouldn't, some we don't do because they are objectively wrong, some things we don't do because they are wrong even if we have signed a contract saying we should. Morality exists independently of contracts - contracts do not define right and wrong, and there are some things to which they do not apply. Since the whole thrust of my previous point was that contracts arent't applicable in this case, I'm not sure what point he is trying to make by pointing this out.

"I think that intellectual property in software tends to fall in that category. It costs money to develop software. If that software is distributed for free in violation of a contract saying that the buyer would not distribute it the software company often loses money that it might otherwise have received. This does harm the company."

If the company were to release the software and someone wrote a bad review and then people didn't buy it, that would harm the company. Does that mean writing bad reviews is immoral? If someone can, through a non-immoral act cause another person harm, that doesn't suddenly render that act immoral after all. The morality of software piracy needs to be defined independently of its consequences.

In reference to the little girl:

"There are lots of ways she can enjoy the computer game without paying sixty dollars. She can rent it from Blockbuster. She can buy it in a year or so as a budget release for a much lower price. She can try to find second hand copies and so on. In all of these cases, her buying or renting the computer game at the very least does not make it more probable that people will buy games of the same sort in the future because they will be able to sell the game when they're bored with it or rent the game to other people. She ought to want to find a legal solution and she ought to be able to get help from her parents to do so. I do see a moral dilemma."

In the hypothetical situation I was describing it was assumed that there was no alternative channel by which to get the game. This counter-argument is very much tied to the relat-life happenstance of the situation, in which the software developers, in conjunction with a third party have arrived at a clever a viable way allow people to try the game without paying and yet still make revenue for the developer. On the one hand Alan has avoided the issue of whether the girl would have been right to pirate had such an option not been available (as it often isn't), but on the other hand he has illustrated a very good example of how the developer can apply creativity to solve the problem (crap software being expensive) in a way that makes everyone happy (videogame rentals). If they had instead been allowed to exact a profit by getting the police to round up all 13yo girls who pirate, and then sued their parents for $50,000 each, it seems unlikely that there would have been much incentive for them to devise this (much better) solution.

Incidentally, it's worth noting that Sony recently launched an attack against the second-hand gaming market. Although most people criticised them for this money-grubbing attitude, since developers make no direct profit from the second-hand games market, it does raise the question of why we should consider second-hand intellectual property to be morally distinct from piracy anyway? Just because someone is making a profit, it doesn't mean the developer benefits. In fact how is selling a used game any different than selling an unused pirate game? In both case you profit from the publishers work without them getting a penny, and in both cases you deprive them of a sale since that customer won't be buying a legitimate new copy instead. And yet since there is obviously nothing morally reprehensible about second hand games (at least to any sane person) it would seem to cast further doubt about the validity of the "lost revenue = stealing" argument commonly used against pirates.

"It seems to me that there is more than a touch of utopianism about this post. The World didn't take the time to weigh up the actual damage done by illegal downloading and whether people have other alternatives. Nor did it take the time to look at whether there might be solutions that would involve making suggestions for better software selling policies. No, instead it just threw the whole edifice of intellectual property in software out the window."

I believe that the path to a utopian society is to first work out what the ideal situation would be and then compromise if necessary when pragmatism requres it - not to shoot for an unsatisfactory solution in the first place. This is sometimes called "not going in with your highest offer first".

The closing argument of the original article was that software developers should be seeking innovative solutions for better software selling policies rather than concentrating its efforts on demonising and prosecuting pirates. So what makes you think that The World isn't interested in doing that?

The purpose of intellectual property rights is to promote innovation, but it has become patently obvious (no pun intended) that they can easily be abused to stifle creativity and competition, (or just to make a fast buck at the expense of some poor sap), and that violating them can benefit humanity in many cases. So why not 'throw the whole edifice out' and see if we're better off without it? After all, we're just talking...